Making a will is one of the most practical things you can do for the people you care about, but a will only works if it meets the legal requirements. In British Columbia, those requirements are set out in the Wills, Estates and Succession Act (WESA). To make a valid will in BC, you must be at least 16 years old and mentally capable, and your will must be in writing, signed at the end by you, and witnessed by two people who are present together when you sign.
This guide explains each requirement, the newer rules for electronic wills, the mistakes that most often cause problems, and what happens when a will falls short.
What Makes a Will Valid in BC
Under the Wills, Estates and Succession Act (WESA), which came into force on March 31, 2014, any person 16 years of age or older can make a Will. The question is, what constitutes a valid Will? Section 37 of WESA states:
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
Under normal circumstances, a Will is signed by the will-maker in front of two witnesses (who are not named in the Will) and each witness signs the Will acknowledging that they were both present at the same time when the Will was signed.
Age and mental capacity
WESA sets the minimum age at 16, but age alone is not enough. The will-maker must also have testamentary capacity, meaning the mental ability to understand what they are doing when they make their will, at the time they make it. A person can have capacity to make a will even if they need help with other parts of daily life, and a diagnosis such as early dementia does not automatically mean a person lacks capacity.
A will must also reflect the will-maker’s own wishes. If someone pressures or manipulates the will-maker into making particular gifts, the will can be challenged on the basis of undue influence.
|
Testamentary Capacity Testamentary capacity is the mental ability needed to make a valid will. The will-maker must understand what a will is and what it does, have a general sense of what they own, and know who might reasonably expect to benefit from their estate. |
In writing
A will must be in writing. It can be typed or handwritten, and since December 1, 2021, it can also be an electronic document (see below). Wishes expressed out loud to family members, however clearly, are not a will.
Signed at the end
You must sign the will at its end, or acknowledge a signature already on it as yours, while both witnesses are present. Anything written after your signature may not take effect, so your signature should follow the last provision of the will.
Two witnesses, present at the same time
Two witnesses must be present together when you sign, and each witness must then sign in your presence. The witnesses do not need to read the will or know what it says. They are confirming that you signed it.
Choose your witnesses carefully. WESA generally requires a witness to be at least 19 years old, and a witness should not be someone who receives a gift under the will, or the spouse of someone who does. If a beneficiary or a beneficiary’s spouse witnesses the will, the will itself remains valid, but the gift to that person may be void unless a court orders otherwise.
|
Holograph Wills A holograph will is a will written entirely in the will-maker’s own handwriting and signed, but not witnessed. Some provinces accept holograph wills. BC does not, so a holograph will can only take effect in BC if a court orders it under section 58. |
Electronic Wills and Remote Witnessing
BC’s rules on how wills are signed and witnessed have changed in recent years. During the COVID-19 pandemic, the province temporarily allowed wills to be witnessed by video, which we wrote about at the time in making a will during the COVID-19 pandemic. Remote witnessing has since been made permanent.
Since December 1, 2021, BC has also recognized electronic wills: wills that are created, signed and stored electronically, with no paper original. The will-maker and witnesses can sign with an electronic signature, and the witnesses can be in the will-maker’s “electronic presence,” meaning they are connected through live audio-visual technology that lets everyone see and hear each other at the same time. BC was the first province in Canada to allow fully electronic wills.
These options are convenient, but they bring their own risks: confirming the will-maker’s identity, making sure no one off-camera is influencing them, and keeping track of which electronic file is the final version. An electronic will also cannot be altered once it is made. To change it, you need to revoke it and make a new one.
|
Electronic Witnessing Electronic witnessing lets your witnesses watch you sign your will over a live video call instead of in the same room. Everyone must be able to see and hear each other at the same time, and the other signing requirements still apply. |
When a Will Doesn’t Meet the Requirements
Under WESA, there are some circumstances where a testamentary document in another form may be considered by the Court as a person’s last intentions. Section 58 of the Act deals with curing deficiencies and rectification of Wills by Court Order:
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
What this means is that any written intention, including documents stored electronically, can be brought before the Court to be considered as a will-maker’s last wishes. The process for proving a will-maker’s intentions in another form or for curing deficiencies in the Will may be costly so it is imperative to have a valid Will in place to help protect your estate and carry out your last wishes as you had intended.
Common Mistakes That Can Invalidate a Will or a Gift
Most problems with wills come from how they were signed or changed, not from what they say. These are the issues we see most often:
- Witnesses who were not present together. If one witness signs on Monday and the other on Wednesday, the will does not meet section 37.
- A beneficiary or their spouse as a witness. The will stands, but the gift to that beneficiary may be lost.
- Handwritten changes after signing. Crossing out a name or writing in a new amount after the will is signed can invalidate the will and may require a court order to cure any deficiencies which can be an added cost to your estate.
- Losing the original. A photocopy or unsigned draft is not enough on its own. If the signed original cannot be found, a court application will be required to prove the will in solemn form and provide evidence that the original will was signed and then lost.
- Relying on a will kit. Kits can work for very simple estates, but they are a common source of signing errors and unclear wording, and they rarely account for blended families, property outside BC, or assets that pass outside the will. A wills and estates lawyer in Victoria can prepare your will and supervise the signing so these problems do not arise.
- Never updating it. A will made decades ago may name an executor who has since died, or leave out grandchildren, a new spouse, or property bought since.
Changing or Revoking Your Will
You can change your will at any time while you have capacity. Small changes can be made with a codicil, a separate document that amends the will and must be signed and witnessed in the same way as a will. For anything more than a minor change, it is usually clearer to make a new will. In most cases, we recommend making a new will and revoking the old one as it often requires the same amount of time and work as making a separate codicil and results in one streamlined will rather than two separate documents.
Under WESA, a will can be revoked by making a new will, by a written declaration signed and witnessed like a will, or by burning, tearing or otherwise destroying the original will with the intention of revoking it.
Two WESA rules surprise many people. Getting married no longer revokes an existing will, as it did under the old Wills Act. And if you and your spouse separate, gifts to your spouse and their appointment as executor are generally revoked, even before any divorce, unless your will says otherwise. If you have a new partner or stepchildren, our guide to estate planning for blended families covers the issues to consider.
|
Multiple Wills Some people sign more than one will, each dealing with different assets, such as assets that will need probate and assets that will not. Done carefully, this can reduce probate fees. Done carelessly, a later will can accidentally revoke an earlier one. |
Storing Your Will Safely
A will is only useful if it can be found. Keep the signed original in a safe place, such as your lawyer’s office or a fireproof location at home, and tell the person you have named as executor where it is.
You can also file a Wills Notice with the BC Vital Statistics Agency. A Wills Notice does not store the will itself. It records where the original is kept, so it can be located after your death. Filing is optional.
What Happens If You Don’t Have a Valid Will
If you die without a valid will, or your will is invalid and a court will not cure it under section 58, your estate is distributed according to the intestacy rules in WESA. You would not choose your executor; the court would appoint an administrator instead. The intestacy rules also make no provision for friends, charities or stepchildren who have not been adopted.
|
Dying Intestate Dying intestate means dying without a valid will. WESA then decides who inherits your estate, starting with your spouse and children, and the result may not match what you would have chosen. |
Making Your Will with Deborah Todd Law
Creating a will is one of the most important steps you can take to protect your loved ones and ensure that your wishes are respected. At Deborah Todd Law, we assist clients in BC with drafting clear, legally enforceable wills that provide peace of mind. Whether you are managing your assets during a divorce or want to integrate your estate planning with broader family law considerations, we are here to guide you every step of the way.
Learn more about our services by visiting our areas of practice or explore our homepage. We also provide assistance with related matters, such as filing estate taxes with the help of a qualified estate accountant, and preparing an enduring power of attorney to ensure complete protection for your estate.
A carefully prepared will can prevent disputes among heirs, protect vulnerable family members, and simplify the probate process. Deborah Todd brings decades of legal experience to every will she drafts, ensuring that your plans are thorough, personalized, and legally sound. You can learn more about Deborah Todd’s background and client-focused approach by visiting her LinkedIn profile.
When you are ready to create or update your will, contact Deborah Todd Law to schedule a consultation. We make estate planning clear, straightforward, and tailored to your needs.
